 Welcome to Introducing the Federal Courts, the Federal Judicial Center's orientation series for court employees. This is program two of the series, How Criminal Cases Move Through the District Courts. It's designed to help you become familiar with basic procedures involved in processing criminal cases in the federal district courts. Part four, Sentencing and Post-Judgment Proceedings. In the first three segments of this video program, we've been following the case of United States versus Angela Smith and Michael Jones through the federal criminal system. In our third tape, we saw that defendant Smith entered a plea of guilty and that defendant Jones elected to go to trial. In this final tape, we'll see if the jury finds Jones guilty or not guilty. Then we'll take a look at sentencing procedures. Once again, we'll be referring to the federal rules of criminal procedure. We'll also be referring to certain statutes and guidelines that apply at sentencing. And finally, we'll take a look at some matters that occur post-judgment, that is, after sentencing. Federal rule of criminal procedure 31 governs the taking of the verdict in the Michael Jones case. Rule 31 requires that the jury's verdict be unanimous and that it be returned by the jury to the judge in open court. Let's see what the verdict is in the Jones case. Ladies and gentlemen, I've received your note which says you have reached a verdict in this case. Will the four person please stand? Would you please hand the verdict form to the clerk who will then deliver it to me for inspection? Thank you. Very well, Mr. Jones, will you please stand and face the jury? Mr. Four Person, as to count one of the indictment, alleging distribution of a controlled substance, to wit, cocaine, has the jury reached a verdict? Yes, it has. On count one of the indictment, how do you, the members of the jury, find the defendant guilty or not guilty? Guilty. The jury finds Michael Jones guilty on all counts of the indictment. After the verdict is returned, but before it is officially recorded, rule 31 allows the jury to be polled at the request of any party. In a poll of the jury, each juror is asked whether he or she agrees with the verdict announced by the four person. Rule 31 provides that if the poll reveals there is not unanimous agreement on the verdict, the jury may be sent back to the jury room for further deliberations. Or, if it appears the jury cannot agree on a verdict, the jury may be discharged. A jury which cannot agree on a verdict after considering the case for a reasonable amount of time is called a hung jury. When there is a hung jury, a mistrial is declared and the defendant may be tried again before a new jury. A mistrial is a ruling by the court that the trial is to be terminated at that point and given no effect. Of course, a jury can also return a verdict of not guilty. A not guilty verdict is also called an acquittal. Once a defendant is acquitted of a criminal charge, that charge cannot be brought against him a second time. It appears then that both Angela Smith and Michael Jones will be proceeding to sentencing. The sentence is a judgment of the court imposing a particular punishment upon the defendant after he or she is found guilty of a crime. In examining Angela Smith's plea bargain and guilty plea, we've already isolated some of the factors which will come into play in shaping her sentence. So let's use Smith's case to examine the statutes and procedural rules which govern sentencing. Rule 32 of the criminal rules, which governs sentencing procedures in federal courts, says that criminal sentences should ordinarily be imposed without unnecessary delay. But how does the judge figure out what that sentence will be? In order to impose an appropriate sentence, the judge must learn a tremendous amount about the individual he or she is sentencing. The judge must also come to have a full and accurate understanding of the facts of the offense. Finally, the judge must know what types of penalties may be imposed upon the sort of person who committed that kind of offense. United States probation officers, like probation officer Mumford, assist the court by providing it with information bearing upon these matters. Hi, I'm United States probation officer Charles Mumford. Probation officers provide the court with the information required by Rule 32 and federal laws governing sentencing. We do this in the form of a written pre-sentence investigation report to the court. As you can gather from its name, the pre-sentence report is prepared prior to sentencing. When a defendant enters a guilty plea or is found guilty after trial, the judge orders the probation office to prepare the pre-sentence report. At that time, the judge also tells the defendant that the probation officer will ask for information for the report and that the defendant's attorney may be present when the defendant gives it. The sentencing judge will rely heavily upon the information presented in the pre-sentence report in fashioning the defendant's sentence. So let's take a look at what goes into the report. One thing a probation officer's pre-sentence report has to do under Rule 32 is detail for the court the officer's recommendation as to how the sentencing guidelines and policy statements of the United States Sentencing Commission apply to a particular case. Take Angela Smith's case, for example. Smith, like any defendant who has been found guilty of a federal crime, must be sentenced under the provisions of certain sentencing statutes passed by Congress. One of these statutes called the Sentencing Reform Act of 1984 established an agency called the United States Sentencing Commission. The mission of the Sentencing Commission is to establish sentencing policies and practices for use in the federal courts. Under the Act, the Sentencing Commission issues guidelines for judges to use in fashioning criminal sentences. The sentencing statutes require the courts to use these sentencing guidelines. Judges use the guidelines to help them decide what kind of a sentence to impose, that is, whether to impose a sentence to probation, to pay a fine, or to serve a period of imprisonment. The appropriate length of a sentence, the appropriate amount of a fine, whether the offender should serve a term of supervised release following the imprisonment, and if so, the length of that term, and whether multiple sentences to terms of imprisonment should be ordered to run concurrently at the same time or consecutively, one followed by another. Congress created this guideline sentencing system because it wanted to promote honesty in sentencing by doing away with parole and making certain the offender serves the actual sentence imposed. Uniformity and sentencing, by setting sentencing ranges which help ensure that similar offenders who commit similar crimes are given similar sentences and proportionality in sentencing. For example, by ensuring that an offense which is twice as serious as another offense will result in a penalty which is twice as serious. Complete and accurate fact finding is an important part of achieving these goals. This is because guideline sentencing involves the application of rules, the guidelines themselves, to facts. What facts? The facts of the offense. After all, the court can only impose a just sentence when it applies the guidelines to the actual facts of the offense. Thus, the probation officer must conduct a thorough investigation of the facts involved in the offense. The probation officer reports the facts of an offense in the pre-sentence report and the judge usually adopts these facts as the findings of the court unless the lawyers convinced the judge that the probation officer was wrong. I'm about to show you how I apply these guidelines in preparing my pre-sentence investigation reports. There are several steps involved in this process. Keep in mind though that each step of the way I will be developing recommendations as to how the guidelines apply to the facts of the offense as my investigation has revealed them. The guidelines themselves, and many materials useful in applying them, are found in the United States Sentencing Commission guidelines manual. The guidelines manual contains the sentencing guidelines themselves, policy statements, which are non-binding recommendations on how to apply the guidelines and commentary to assist in interpreting the guidelines. The manual also contains a sentencing table. I'll use this table in computing the sentencing range applicable to Angela Smith's case. I use the term sentencing range because the relevant statutes require the sentencing commission to establish sentencing ranges. For example, a range of six to 12 months instead of setting the precise length of prison terms. In my pre-sentence report, I'll tell the judge the sentencing range I think applies to the case, but the final sentencing decisions, for example, whether the correct sentencing range is six to 12 months, and if so, whether to sentence the offender to six, seven, nine, or 12 months within that range are left to the judge. As you can see, the sentencing table has offense levels on its vertical axis and criminal history categories on its horizontal axis. The point at which these two axes meet reveals the applicable range of sentences. For example, for offense level 21 and criminal history category five, the sentence range is 70 to 87 months. Of course, before I can use the sentencing table, I must determine the offense level and the criminal history category which apply to a given case. Most probation officers do this by using special worksheets. In filling out the worksheet, I go first to Appendix A, the statutory index, to see which set of guideline instructions applies to the offense committed. Thus, for defendant Smith, who pled guilty to one count of conspiracy to distribute more than 500 grams of cocaine and violation of 21 USC, section 841B1, guideline 2D1.1 applies. I then review the instructions found at guideline 2D1.1. These instructions tell me to consult the drug quantity table in order to find the offense level which applies to conspiracies to distribute over 500 grams of cocaine. Consulting the table, I find that a base offense level of 26 applies. Adjustments are then made to that base offense level by adding or subtracting points assigned to such factors as the size of the defendant's role in the offense, whether the offender obstructed justice, whether the victim was injured, whether the defendant has accepted responsibility for committing the offense, and so forth. In Angela Smith's case, I have concluded after reviewing the charges and plea agreement and also talking to both counsel and Smith herself that the only applicable adjustment is the acceptance of responsibility adjustment. And that's what I recommend in the pre-sentence report. A defendant does not automatically qualify for this adjustment by entering a guilty plea. In fact, both defendants who go to trial and defendants who plead guilty may be considered for this adjustment. In order to qualify for the adjustment, however, the defendant must clearly accept responsibility for his or her criminal conduct. Smith has accepted personal responsibility for her criminal act and thus qualifies for the acceptance of responsibility adjustment. Well, that's what the government says happened. What do you say? They're right. I did sell the drugs, you know. Everything they said I did, I did. It was a big mistake. Applying the acceptance of responsibility adjustment results in a deduction of two points from Smith's space offense level. This leaves Smith with an adjusted offense level of 24. Next, I determine the appropriate criminal history category. The sentencing commission has established a system that assigns numerical values, numbers or points, to the offender's prior criminal convictions. Since this is Smith's first conviction, she has no history of criminal convictions, so she receives no points and thus falls within the lowest criminal history category, category one. The next step is to find the intersection of offense level 24 and criminal history category one and the sentencing table. As we can see, the sentencing table shows a sentencing range of 51 to 63 months for that offense level in criminal history category. Now that I know the sentencing range to recommend in Smith's case, I can check to see what sentencing options the court has available to it. That is, probation, supervised release, restitution, imposing a fine, and imprisonment. The sentencing statutes and guidelines do not allow the court to choose from the entire range of these options in every case, however. Let's see what the court's sentencing options are in Smith's case. First, what about probation? Statutes like the Sentencing Reform Act make probation a sentence in and of itself. Offenders placed on probation must observe certain conditions of probation required by statute or the sentencing court. Probationers must also report to the probation officer as directed by the court and follow the officer's instructions. But the statute governing the offense to which Angela Smith pled guilty expressly prohibits a sentence of probation. In addition, the sentencing guidelines do not permit a sentence to probation if the minimum term of imprisonment specified by the sentencing table is more than six months. Here it is 51 months, so probation is not an option for Smith. What about supervised release? The guidelines state that the court shall order a term of supervised release to follow imprisonment when a sentence of more than one year is imposed or when required by statute. Like offenders placed on probation, offenders placed on supervised release must observe certain conditions required by statute or the sentencing court. The statute governing the offense to which Smith pled guilty states that the court should impose a term of supervised release of at least four years to follow any term of imprisonment imposed by the court. So Smith's prison sentence will be followed by four years of supervised release. Next, what about restitution? Restitution, payment of money or services to the victim of a crime for losses suffered as a result of the offense must be ordered as a part of the sentence for violating certain sections of the criminal code such as Title 18 of the United States Code or it may be imposed as a condition of probation or supervised release in any other case. Here, however, Smith's drug offense violates Title 21 of the code which does not require restitution nor is there any identifiable victim in this case. So restitution is not a sentencing option for the court. Another sentencing option available to the court is imposition of a fine. The guidelines require the court to impose a fine within the applicable range in all cases. That is, except where the defendant establishes an inability to pay a fine or that paying a fine would unduly burden his or her dependence. At this point, Smith has not done this. Having pled guilty to a felony, Smith must also pay a special assessment of $50. That money will go into a crime victims fund established under the Victims of Crime Act of 1984. Finally, Smith may be required to pay an additional fine in order to compensate the government for the cost of her imprisonment and supervised release. Payment of this fine is also subject to Smith's ability to pay. Smith has not yet shown that she would be unable to pay these costs or that doing so would unduly burden her dependence. So at least at this point, the court has the option of ordering Smith to pay for the cost of her imprisonment. The court will use materials developed by the Bureau of Prisons and other federal agencies in calculating such costs. Of course, imprisonment is another option available to the court under the applicable statutes and the guidelines. And we know from our use of the sentencing table that the court must impose a period of imprisonment in Smith's case. Remember, the sentencing statutes require that the judge use the sentencing guidelines in considering all of these sentencing options and fashioning all aspects of Smith's sentence. This means that with respect to imprisonment, probably the most significant aspect of Smith's sentence, at least from her point of view, the court must impose a sentence which falls within the 51 to 63 month range specified in the sentencing table. That is, unless the court concludes that a departure from the guidelines is justified in Smith's case. The term departure has a very specific meaning in the context of guideline sentencing, however. The applicable statute states that the court may depart from the sentencing guidelines in a case before it. That is, impose a sentence above or below the range established by the sentencing guideline which would otherwise apply to the case, only if it finds that there is an aggravating or mitigating circumstance in the case which the sentencing commission has not already considered in the guidelines. For example, in one case, a defendant who was an employee of the federal government pled guilty to theft of government property amongst other offenses. The employee stole property repeatedly over a six-year period. The applicable guideline range was 30 to 37 months, but the sentencing court departed upward from that range because it decided the case included an aggravating circumstance which the sentencing commission had not already addressed in the guidelines. The court found that while the guidelines considered the seriousness of the offenses, it did not consider the added factor of their lengthy duration. The court decided that the commission of the offenses over a lengthy six-year period of time was an aggravating factor. Since the sentencing commission had not considered this factor in fashioning the guidelines, the court was allowed to make an upward departure from the guidelines. So the court did so and sentenced the offender to more than 37 months in prison. A policy statement in the guidelines themselves, however, suggests that the court may depart from the guidelines and impose a reduced sentence if the government files a motion with the court saying that a defendant has provided substantial assistance to it in the prosecution of another person. As we know from the terms of Smith's plea bargain, the government agreed to file such a motion asking the court to depart downward from the guidelines and sentence Smith to 15 months in prison if she provided substantial assistance in the prosecution of Jones. We also know that Smith cooperated with the government in its prosecution of Michael Jones, providing vital testimony for the government at Jones' trial. Once Smith held up her end of the plea agreement, the government met its obligations under the agreement by filing a motion with the court saying that Smith had provided it with substantial assistance in the prosecution and conviction of Jones. Why is this of interest to me? Because under Rule 32, a pre-sentence report must contain an explanation of any factors that indicated departure from the guidelines would be justified. My pre-sentence report therefore reflects Smith's cooperation with the government and reminds the judge that a departure from the guidelines would be permissible because of that cooperation. It is the judge, however, who will actually decide whether or not to grant the departure. Let me summarize for you what I've done in recommending how the sentence and guidelines apply to Smith's case. First, I calculated the total offense level for Smith's offense. Second, I determined defendant Smith's criminal history category. Third, I selected the guideline sentencing range which applied to Smith's offense level and criminal history category. Fourth, I reviewed the sentencing alternatives available under the guidelines in Smith's case. That is, what options the court has available to it regarding probation, prison, supervised release, fines, and restitution. And fifth, I decided whether a departure from the sentencing guidelines would be justified in the case. It is important to remember that the pre-sentence report is not a public document. Its disclosure under Rule 32 is limited to the defendant, his or her attorney, and the attorney for the government. And even these parties are not entitled to read the entire report. Rule 32 does allow the court to permit the defendant and his counsel to read those parts of the pre-sentence report that contain the material we've been discussing prior to sentencing. Unless it contains information which the court thinks might be harmful to the defendant or others. Okay, okay, so I know all that, but I really want to know is what is the sentence that the probation officer recommended to the judge? That information has been removed from our copy of the pre-sentence report. The probation officer makes a sentencing recommendation to the judge, but we're not allowed to see that part of the report. We do know, however, which sentencing, classification, and guideline range the probation officer says applies to your case. Yeah, well, 51 to 63 months. Right, but remember, the judge can still grant you a departure. Does it say in there what the shrink said? The judge sent me to a psychologist after I told the probation officer that I was feeling kind of depressed around the time that I sold the drugs. That information isn't here either. See, the court has the discretion to prohibit disclosure of any parts of the report dealing with diagnostic opinions, confidential sources, or any other information which, if revealed, might result in harm to you or to anyone else. The psychologist may have recommended that you undergo therapy, but it might not be helpful for you to know the reasons why he made that recommendation, but the judge has that information and she may use it as she feels fit in helping to shape your sentence. Attorney Lee is correct. Rule 32 requires disclosure to the defense and prosecution of the probation officer's conclusion on what sentencing classifications and sentencing guideline range the officer believes applicable to the case. The probation officer's recommended sentence cannot be disclosed, however, and rule 32 gives the court an alternative to simply removing diagnostic and other confidential information from the report. The rule also allows the court to provide the defense instead with a summary, either oral or written, of the factual information contained in the report which the court will rely upon and deciding upon the sentence. Finally, rule 32 requires that any information in the pre-sentence report that is disclosed to the defense also be disclosed to the government. These parties must be given the discloseable parts of the report a reasonable time prior to sentencing under rule 32 and not less than 10 days prior to the sentencing hearing under the relevant statute. Many district courts have a local rule requiring disclosure of the report at least 20 days before the sentencing hearing. Upon disclosure of the report, rule 32 gives the defendant and his counsel an opportunity to comment upon the report. The defense can also object to any alleged factual inaccuracies of the report and introduce evidence relating to such alleged inaccuracies. The federal and local rules governing disclosure of pre-sentence reports recognize that pre-sentence reports play a central role in helping the judge determine the facts relevant to sentencing. And by providing for timely disclosure of the pre-sentence report prior to sentencing, these rules give the parties an opportunity to identify and resolve legal and factual issues that they disagree on before the sentencing hearing is held. The parties may do this by submitting written materials to the probation officer or meeting with the officer to make their objections and present their views on disputed issues. They can also file motions stating their objections with the court. After receiving the party's comments on the report and considering their objections, the probation officer may prepare an addendum to the report. The addendum will state what objections to the report have been raised by the parties and how the probation officer has resolved these objections. Or, instead of working through the probation officer, the prosecutor and the defense attorney may agree on written stipulations of fact relevant to sentencing and file those stipulations with the court prior to sentencing. Of course, it is the judge who has the last word in deciding what the facts of the case are for sentencing purposes and the judge is not required to accept the facts which the parties have stipulated to or the facts which the probation officer has presented in the pre-sentence report. Nevertheless, justice will be served if any of these procedures lead to the identification of errors in the report and valuable court time will be saved if contested issues are identified and worked out prior to the sentencing hearing itself. In addition to requiring disclosure of the pre-sentence report, a reasonable time prior to the sentencing hearing, Rule 32 also gives the court the option of allowing the defense and the prosecution to introduce testimony and present other information relating to alleged factual inaccuracies in the report at the hearing itself. Of course, the court ultimately resolves the issues involved after reviewing the evidence and the material submitted by counsel. After doing so, the court is required by Rule 32 to state its findings in writing. The judge's findings must be attached to the pre-sentence report which will eventually go to the Bureau of Prisons. The structure of the sentencing hearing itself is also largely shaped by the requirements of Federal Rule of Criminal Procedure 32. At the sentencing hearing, the defendant, defense counsel, and the prosecutor appear before the court. The probation officer may also be present along with any witnesses which the parties have subpoenaed to give testimony at the hearing. The judge has a copy of the pre-sentence report and any other reports necessary. Now that the groundwork has been laid for the hearing, let's see what happens at the hearing itself. Good afternoon, everyone. Mr. Lee, have you and Ms. Smith each had an opportunity to review the pre-sentence report in this case? Yes, Your Honor. And have you discussed the contents of that report? We have. All right. At this time, does the defense have any objections to the pre-sentence report other than the objections noted in the addendum to the report? The defense does not have any additional objections, Your Honor. At this time, then, the court will accept as fact those factual findings made in the pre-sentence report which have not been challenged by any party. Next, I'll hear testimony or argument with respect to the matter and controversy which concerns whether Ms. Smith is entitled to an adjustment on the theory that she played a minor role in this offense. After I make all relevant findings a fact, I'll decide which guidelines are applicable to this case. I'll then ask counsel for their recommendations on sentencing. Ms. Smith will also have a chance to address the court prior to sentencing. Finally, the court will impose sentence and state for the record the reasons for the sentence it has imposed. Now, with respect to the controversial issue in this case, I believe the defense has raised an objection to the probation officer's finding that Ms. Smith did not play a minor role in this offense and is therefore not entitled to a downward adjustment of two points. Mr. Lee, I'll hear you on that. Thank you, Your Honor. Our contention is that the court should find in applying the guidelines to the facts of this case that Ms. Smith was a minor participant in this offense. And as such, that her offense level should be decreased by two points under guideline 3B 1.2 mitigating role. Our argument is simply this. The commentary to section 3B 1.2 clearly defines a minor participant as someone who is less culpable than most other participants, but whose role could not be described as minimal. And we would submit that even under the facts as the probation officer finds them in the report, the court must conclude that Ms. Smith had a minor role in this offense. The facts show that Jones was the person who was conducting this elaborate conspiracy to distribute cocaine that Jones had procured the cocaine and that he and Smith distributed to Agent Brown and that Jones even drove Ms. Smith to the crime scene. In short, Jones took all the planning and leadership steps necessary for this crime to be committed. Smith, on the other hand, was clearly hired by Jones on only this one occasion. She performed what was only the last act in the lengthy series of acts which Jones had masterminded and which led to the sale of drugs to Agent Brown. And we would suggest that's because Jones himself didn't want to assume the risk of actually physically distributing cocaine to a purchaser on the street. So he assigned that task to Smith. Smith was just Jones delivery person in this situation. So we submit she's entitled to a two-point reduction as a minor participant in this crime. Ms. Johnson, what's the government's position on this issue? The government disagrees, Your Honor. We think that although it is clear that the defendant Jones has committed a larger number of offenses than Ms. Smith and more serious offenses than Ms. Smith, Jones' overall conduct is not relevant to the question of Smith's role in this particular sale. Smith's involvement as a co-conspirator in this sale cannot be considered minor by any stretch of the imagination. Smith accompanied Jones to his apartment to get the cocaine, went with him to Centerville to make the sale, and was present when the deal was negotiated. Smith herself made the proposed deal a reality by taking the cocaine from the van, walking to a secluded spot with Agent Brown, and actually transferring the cocaine to him. So we contend that when the actual conduct of Jones and Smith in committing this particular offense is considered, Smith's role must be considered at least as significant as Jones. Thank you, counsel. Having heard the arguments of counsel, the court is prepared to rule on this issue. The court finds that Smith played a significant role in this offense. Since among other things, she actually physically transferred the cocaine to Agent Brown. She is therefore not entitled to have her offense level adjusted downward by two points under guideline 3B 1.2 because she did not play a minor role in the offense. So the court will overrule the defendant's objection to that finding in the report. Very well, we have no other objections, Your Honor. Ms. Smith, let me advise you that the court has decided to accept your plea of guilty. As you remember, at the time you offered your guilty plea to the court, the court decided to postpone the question whether to accept or reject that plea until it reviewed the pre-sentence report. This is the report I'm discussing. The court has now reviewed it and resolved all disputed issues regarding that report. Having done so, the court now concludes that it is appropriate to accept your plea of guilty in light of those facts and the plea agreement. Is that understood? Yes. Now, the court makes the following determination with respect to the application of the sentencing guidelines. The court finds that the appropriate base offense level in this case involving 540 grams of cocaine is 26. The pre-sentence reports indicates, and I so find that an adjustment is appropriate under guideline 3E 1.1 because Ms. Smith has clearly accepted personal responsibility for her criminal conduct. This adjustment reduces the base offense level to 24 and with no prior criminal record, Ms. Smith's criminal history category is category one. So the appropriate sentencing range under the guidelines, according to the sentencing table, is 51 to 63 months. Are there any objections to the court's findings with respect to the applicable guidelines? Nothing in addition to the objection already raised, Your Honor. Ms. Johnson? No, Your Honor. All right, then. Next, I'll hear your arguments as to the appropriate sentence in this case. But first, let me mention that I have reviewed the motion filed by the government in this case, and I've reviewed some materials filed on behalf of Ms. Smith by Mr. Lee, including a memorandum to the court in aid of sentencing and letters to the court for Ms. Smith's sister and cousin. And that's everything that I've reviewed. Has anything else been filed that I should be aware of? No, Your Honor. Very well. Then let's proceed to allocution. Allocution refers to the opportunity for counsel for the defendant, counsel for the government, and the defendant to address the court about matters bearing on sentencing. This includes arguing to the court that a particular sentence should or should not be imposed. Mr. Lee, I'll hear you on behalf of your client, sir. Thank you, Your Honor. I would stress that Ms. Smith made two fundamental choices early on in this case. First, she chose to admit her guilt and accept responsibility for her criminal conduct. And secondly, she chose to cooperate with the government in its prosecution of Mr. Jones. As the court knows, the government has moved for a departure from the sentencing guidelines in this case under policy statement 5K1.1. The government has moved for a downward departure on Ms. Smith's behalf precisely because she provided it with substantial assistance in the prosecution of Mr. Jones. That's correct, Your Honor. Now, the government's motion explains in detail the nature of Ms. Smith's cooperation and how her cooperation led to the conviction of Mr. Jones. And of course, the jury returned verdicts of guilty in the Jones case on all three counts. So we can assume the jury found Ms. Smith's testimony to be truthful and reliable. I would also like to mention the prosecutor has then given a chance to address the court. Finally, defendant Smith addresses the court. Very well. Ms. Smith, do you wish to speak on your own behalf before the court imposes sentence? I do, Your Honor. I would just like to say that I'm sorry for what I've done and I would like, Your Honor, to remember that at the time that I got involved in all of this, I had two children and I was unemployed. I had looked for a job. I couldn't find one. There just didn't seem to be anything out there for me. The bills were piling up. So I made a choice and now I know that it was the wrong choice. So I'm sorry. That's all that I have to say. Very well. The court will now proceed to impose sentence. The court has considered the materials filed by both counsel, including the motion filed by the government in this case. Ordinarily, a mandatory minimum sentence of five years would apply in this case. But the government's motion authorizes me to utilize the sentence and guidelines in this case so I can apply the guidelines if I see fit to do so rather than simply sentence Ms. Smith to the mandatory minimum sentence which is ordinarily required by the statute. The government motion also requests that I grant Ms. Smith a downward departure in this case in light of the substantial assistance she has provided to law enforcement authorities. It recommends a sentence of 15 months imprisonment. The court will now proceed to impose sentence under the Sentencing Reform Act. Are there any other objections before I do so? No, Your Honor. No, Your Honor. The judge asked this question because after sentence is imposed, the sentencing judge loses jurisdiction of the case and with it the power to correct any sentencing error. So the judge is giving the parties a final opportunity to raise objections before she sentences Ms. Smith. All right then, pursuant to the Sentencing Reform Act of 1984, it is the judgment of the court that the defendant Angela Smith is hereby committed to the custody of the Bureau of Prisons for a term of 21 months. Upon release for imprisonment, Ms. Smith shall be placed on supervised release for a period of four years. With respect to the matter of a fine, it is the court's conclusion that... It appears that the court did not accept the 15 month sentence recommended by the government. As we know from our earlier discussion of plea agreements, when the court accepts a plea agreement containing a recommended sentence, but later imposes a more severe sentence, the defendant does not have an absolute right to withdraw the plea. And a $50 assessment. No restitution is necessary since there is no individual victim in this case. Now let me state for the record, as I am required to do by statute, my reasons for imposing this sentence. In light of the government's motion, I am authorized by statute to apply the sentencing guidelines instead of simply imposing the mandatory minimum sentence. And that is what I have done. Second, I have decided that a departure from the guidelines is justified in light of Ms. Smith's substantial assistance to the authorities in the Jones case. Ms. Smith's assistance was timely and involved truthful testimony, which was obviously quite useful to the government in securing convictions in the Jones case. But as you know, in accepting the plea of guilty, the court was not required to accept the recommendation regarding sentencing, which the government made pursuant to that plea agreement. The government agreed to make a recommendation and it did so. But as you were previously advised, that recommendation was not binding on this court. I have considered the matter carefully. And my conclusion is that, although a substantial downward departure is justified in this case, a sentence of 15 months does not adequately take into consideration the seriousness of the offense which Ms. Smith committed. This was a felony offense, in which Ms. Smith made it possible for a sophisticated drug dealer to distribute more than half a kilogram of cocaine on the street. So the court rejects the 15 month sentence recommended by the government as part of the plea agreement in this case. In some, Ms. Smith, taking into consideration both your cooperation with the government and the seriousness of your offense, the court sentences you to a term of imprisonment of 21 months. The court also finds its conclusion on the matter of a fine to be reasonable in light of the evidence presented in the pre-sentence report. Does either the government or defense have any objection to the form of the sentence which the court has imposed or know why the sentence should not be imposed, as stated? No objection from the government, Your Honor. No, Your Honor. Mr. Mumford, please prepare a written record of the court's findings with respect to the disputed matter in the pre-sentence report. The court will also prepare a written statement of its reasons for imposing sentence using the standard form. You can pick up a copy of the court's statement of reasons in my chambers later today. Yes, Your Honor. A copy of the form the court referred to, on which it will state its reasons for imposing sentence is included in your written materials. Not all courts use this form, however. The court may take its statement of reasons directly from the pre-sentence report or the court reporter may be ordered to prepare a transcript of the statement of reasons given by the court at the sentencing hearing. Mr. Lee, Mr. Mumford will see to it that the court's findings and statement of reasons accompany Ms. Smith's pre-sentence report to the Bureau of Prisons. Very well. The Bureau will use these materials in classifying and supervising you, Ms. Smith. The Bureau of Prisons is not part of the judiciary. Like the United States Attorney's Office and the United States Marshals Service, the Bureau of Prisons is part of the executive branch of the government. Thus, although defendants often ask judges to send them to specific prisons to serve their time, a judge cannot order the Bureau to place a defendant in a specific prison. However, judges often recommend to the Bureau of Prisons that a defendant's term of imprisonment be served at a particular prison. The clerk will also prepare an appropriate judgment of conviction setting forth the plea, the court's findings and the court's sentence. Ms. Smith, good luck to you, ma'am. Please step back with the marshal. If there is nothing further, the court will take a short recess at this time. Let's summarize what Rule 32 requires at the sentencing hearing. First, the rule requires that the parties be given an opportunity at the hearing to object to the probation officer's findings regarding which sentencing classifications and guidelines apply to the case. The rule also requires the court to ensure that the defendant and his counsel have had an opportunity to read and discuss the pre-sentence report, or summary thereof, which has previously been made available to them. With respect to any alleged factual inaccuracies in the pre-sentence report or summary, Rule 32 requires the court to either make a finding resolving the issue or state that no such finding is necessary. Rule 32 also provides that both counsel and the defendant be given an opportunity to address the court regarding the defendant's sentence before the court imposes sentence. After weighing all of this information, the judge imposes sentence. Finally, Rule 32 also requires that a judgment of conviction be prepared after sentencing. The judgment sets forth the plea, the verdict, and the sentence. It must be signed by the judge and entered by the clerk. Federal rule of criminal procedure 55 governs record keeping in criminal proceedings and calls upon the clerk to enter in the records each order or judgment of the court and the date such entry is made. So entry of a criminal judgment means entry of the judgment by the clerk on the criminal docket. After sentencing, pre-sentence reports are available only to the defendant, counsel, the Bureau of Prisons, the district court, and if the case is appealed, the appropriate United States Court of Appeals. Pre-sentence reports are not considered public documents. The date of entry of the judgment on the docket is significant because the time period for filing an appeal begins to run at that time. Ordinarily, under the federal rules of appellate procedure, a defendant has 10 days from entry of a criminal judgment to file a notice of appeal. But if a defendant files certain post-trial motions, such as a motion for a new trial, a motion in arrest of judgment, or a motion for judgment of acquittal, the initial notice of appeal is nullified. A new notice of appeal must therefore be filed within 10 days of entry on the docket of an order by the court denying such motions. Let's talk about post-trial motions for a moment. A defendant who has gone to trial and been convicted, like Michael Jones, may file a motion for a new trial within seven days of a verdict of guilty. Rule 33 of the federal rules of criminal procedure permits the filing of such a motion. The trial court may grant a defendant's motion for a new trial if it concludes that a new trial is required in the interests of justice. Michael Jones could also file a motion in arrest of judgment under rule 34. The basis for this motion is either that the indictment did not charge an offense or that the court was without jurisdiction to try the case. This motion must also be filed within seven days of a guilty verdict or the entry of a guilty plea. Finally, under rule 29, a defendant like Michael Jones can file or renew a motion for judgment of acquittal within seven days of the verdict. If the jury is discharged without reaching a verdict, the motion can be filed within seven days of that time. The court may issue an order extending the seven-day time limitation for filing any of these post-judgment motions. However, the court's extension order must be issued within the initial seven-day time period. Other court actions which may occur after sentencing and judgment in a criminal case include correction of a sentence and revocation of probation. Under rule 35A, the court can correct a sentence which has been determined by the court of appeals to be illegal, unreasonable, or imposed as the result of an incorrect application of the sentencing guidelines. And rule 35B, which defendant Jones may develop a keen interest in, allows the court to reduce a sentence it has previously imposed to reflect a defendant's subsequent and substantial assistance to the government in the investigation or prosecution of another person who has committed an offense. Mr. Jones, it's been a while since you've been convicted and I guess you've had some time to think things over. I don't think I have to tell you that you're facing a pretty long stretch in prison. A very long stretch in prison. Right, right. But I brought you here today to see if you might be interested at this point in assisting the government in its investigation into drug trafficking in the Centerville area. As Ms. Harrison has told you, I'm sure, the government can still file a motion under rule 35B, asking the court to reduce your sentence if you are willing. Yeah, she told me. Go ahead, I'm listening. Well, do you have any interest in cooperating? I was listening. Yes, I'm interested. What is it you want to know? Rule 35B requires that a government motion requesting the court to lower a defendant's sentence to reflect substantial assistance in the investigation or prosecution of another person be filed within one year of the court's initial imposition of sentence. Finally, rule 32.1 governs procedures which apply when a defendant is alleged to have violated conditions of probation or supervised release. The rule also governs procedures which apply when a defendant's probation or supervised release is modified or extended. This concludes the fourth and final segment of our orientation video program on procedures and criminal cases in United States district courts. Thank you for your attention. And remember, your local district court rules may provide for different ways of conducting many of the procedures we've examined. If anything we've discussed here differs from what happens in your court, ask your supervisor to explain the reason for the difference, and follow your supervisor's instructions.